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Vol. I.)

Nash v. FUGATE.

(No. 2.

conditio sign items that it"; 801,

24 Indiana, 481; State v. Pepper, 31 Indiana, 76 ; Passumpsic Bank v. G088, 31 Ver. 318; State v. Peck, 53 Maine, 284.

I refer especially to the case of Deardorff et als. v. Foresman, 24 Ind. 481, and State v. Peck, as containing an exhaustive review of all the authorities bearing upon the question.

It must be admitted there are contrary decisions in the course of other states, among them that of The People v. Bostwick, 32 New York, 445 ; State Bank v. Evans, 3 J. S. Green (N. J.), 155.

Upon a careful examination it will be found that in a large majority of the cases relied on to sustain the opposing view, it appeared that the obligee either had notice of the condition attached to the execution and delivery of the bond by the surety, or there was something in the transaction or on the face of the instrument to put him upon inquiry, or the obligee had not sustained any damage or loss, nor done any act to his own prejudice upon the faith of the instrument. Pawling v. United States, 4 Cranch, 219 ; Wells v. Dill, 1 Martin (N. S.), 592; Bibb v. Reid, 3 Ala. 88; King v. Smith, 2 Leigh, 157.

In Virginia this question has never been the subject of adjudication by any court of the last resort. In Ward et als. v. Churn, 18 Grattan, 801, this court held that an instrument which on its face indicates that it is not complete, and that other persons are intended to sign it, is not binding upon those who do sign it, although the condition may not have been known to the obligee when it was delivered to him. But the court declined to express any opinion upon the effect of an instrument which is apparently complete, and which in no manner indicates that it is to be signed by others. In the course of his opinion, Judge Joynes adverted to this question and to the conflict of authority upon it, but he said its decision was not necessary to the case before the court. In Preston v. Hull, recently decided by this court, the instrument was imperfect and incomplete on its face when exhibited to Hull, in the fact that the name of no obligee had been inserted. And this court held that the blank could not be filled by an agent appointed by parol, and then delivered in the absence of the principal as a deed. It is clear that the doctrine of estoppel could have no application to the case.

Amid this ,conflict of authorities in other states, and in the absence of any express adjudication by this court, we are at liberty to adopt that rule which seems best to accord with sound policy and well established general principles of law.

In this State it is believed to have been the general practice and usage for parties executing bonds as sureties to teave them in the possession of the principal obligor for delivery to the obligee. Until very recently no serious question has ever been raised as to their liability, whatever may have been the conditions imposed, unless indeed there was something apparent on the face of the instrument calculated to excite suspicion or inquiry.

It is impossible to foresee the mischief of establishing a different rule. An obligee having in his possession an instrument signed by responsible parties, to all appearances perfectly complete and valid, may at any distance of time be confronted and defeated by a secret parol agreement between the principal obligor and some one of the sureties, of the existence Nash v. FUGATE.

Vol. I.)

[No. 2.

How and is it pos

things, the

of which he had not even a suspicion. How is it possible to provide against these pretended agreements? How are they to be met and disproved ? In the nature of things, the obligee can offer no evidence besides the bond, as a knowledge of the condition is generally confined to the principal obligor and the sureties.

It is a fundamental principle of the common law that parol testimony is not admissible to vary or contradict a written agreement. In this case it is proposed to receive such testimony in its most objectionable form, by proof of a parol contract between the parties on one side never communicated to the party on the other most interested in knowing it.

It has been said that the obligee may protect himself by requiring the personal acknowledgment of each one of the obligors.

Apart from the inconvenience of such a rule, it is by no means certain that an acknowledgment of that kind will furnish the necessary security. After a great lapse of time it would be as difficult to prove the acknowledgment as the original execution, unless indeed some independent proof of such acknowledgment shall always be preserved along with the bond.

On the other hand, nothing can be easier than for the surety to incorporate in the writing or indorse upon the paper the condition upon which his signature is obtained, or he may commit it to the custody of a third person in no manner connected with the transaction. This would furnish ample protection to the surety, and constitute sufficient notice to the obligee. In the absence of some plain and obvious precaution of this sort, I think the parties, whose names are attached to the instrument, should be estopped to deny, as against the obligee, that it is their deed.

Since the foregoing opinion was written, the 16th vol. of Wallace's Reports has been published, containing the case of Dair v. United States, page 1.

That case is identical with this, the surety having signed the bond on condition that it should not be delivered unless it was executed by other persons who did not execute it. But the obligee had no notice of the condition, and there was nothing to put him upon inquiry as to the manner of its execution. The supreme court of the United States held that the bond was nevertheless binding upon the sureties. Mr. Justice Davis, speaking for the court, said: “In the execution of the bond the sureties declared to all persons interested to know that they were parties to the covenant, and bound by it, and in the belief that this was so they were accepted and the license granted. They cannot therefore contravene the statement thus made and relied on without a fraud on their part and injury to another. And where these things concur, the estoppel is imposed by law. As they confided in Dair, it is more consonant with reason that they should suffer for his misconduct than the government, who was not placed in position of trust with regard to him.”

It will be perceived that the supreme court rests its decision upon the doctrine of estoppel exclusively. And upon the same ground we are content to place the decision in this case.

It only remains to consider the question raised by the defendants' fifth instruction. This instruction asserts the proposition that if the bond was executed by all the defendants except Isaac Vermillion, and in that condition was delivered to and accepted by the obligee, but afterwards, with

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Nash v. FUGATE.

[No. 2.

the consent of the obligee and without the consent of the obligors, was executed by Vermillion, then it is not the bond of any of said obligors who did not know of said transaction and consent to it.

It will be observed that the obligation is joint and several. In this respect it is different from the bond in Baber v. Cook, 11 Leigh, 606, which was simply a joint obligation. In that case it was held that when a bond is executed by three persons and perfected by delivery, the sealing and delivery by another afterwards will not avoid the bond as to the others. In such case, the obligation as to the three first signing is joint as between themselves and several as it relates to the obligor last signing. And so in this case, if the fact be as assumed in the instruction, as between the parties first signing, the bond is joint and several, and as to Vermillion it is simply his several obligation. Whether the plaintiff will be entitled to a joint judgment against the obligors first executing the bond, and a several judgment against the last, or whether in this action he is barred of any remedy against Vermillion, and will be compelled to resort to a new suit against him, are questions in no manner before us, and which we are therefore not called upon to decide. Moffett v. Bickle, 21 Grattan, 280. We have only to deal with the instruction as it is, which for the reasons suggested is clearly erroneous and should not have been given.

This disposes of all the questions arising upon the pleas and the instructions. In the progress of the trial, evidence was adduced tending to show that at the time the bond was signed by a part of the obligors it was agreed that the signatures of twenty sureties should be obtained, and that there were then twenty seals or scrolls upon the paper, extending to the bottom of the page, whereas the bond as now exhibited by the plaintiff contains ten only. What would have been the effect of such evidence, offered under appropriate pleadings, it is unnecessary now to say.

The instructions given by the circuit judge are not based upon any hypothesis of an incomplete instrument, or an instrument which upon its face indicates that it is to be signed by others; but they cover the broader ground that the bond, though perfect in form and execution, was not valid and binding until the conditions were complied with, although these conditions were never communicated to the obligee, and nothing appeared on the face of the instrument to put him upon inquiry. The second, third, and fourth instructions clearly assert, and were no doubt intended to assert, this proposition, and in that aspect they have been argued by counsel and considered by this court. The first instruction is perhaps not objectionable, though of a somewhat vague and general character. Plea No. 2 affirms the same erroneous doctrine asserted in the instructions. Had it averred that the obligee was apprised of the condition' at the time the bond was delivered to him, or that there were scrolls or seals upon the paper to which no signatures were attached at the time of such delivery, the plea would have presented an entirely different question for the consideration of the court and jury.

Pleas No. 1, 4, and 5 are general pleas of non est factum, to which there is no valid objection. But for the error in admitting plea No. 2, and giving the instructions before mentioned, the judgment of the circuit court must be reversed, and the case remanded for further proceedings in conformity with the views herein expressed.

Reversed and remanded.

Vol. I.]

Hailes v. Van WORMER.

(No. 2.






A combination cannot be the subject of a patent unless it produces a new result.
The mere grouping of devices which produces no new result is not a patentable

combination. There must be a joint action of the constituent parts; not merely

an aggregation of the single effects of each separate part. Substantially as describedconstrued. The originality of the design is unimpeached.

MR. JUSTICE STRONG delivered the opinion of the court.

The bill of the complainant is founded upon two patents, for alleged improvements in base-burning stoves. Of these patents one is a reissue, dated February 3, 1863, and the other is an original, dated August 11, of the same year. The earliest asserts twelve claims, of which the first five only are charged to have been infringed by the defendants, and the second contains six claims, upon the first and second of which alone it is averred there has been any encroachment. The answer of the defendants denies both the novelty and the patentability of the inventions claimed, and it denies also the infringement charged in the bill.

The stove containing the improvements described in the patents held by the complainants, and that manufactured and sold by the defendants, belong alike to a class of stoves long known as “ base-burners,” or selffeeders, called such because they have a magazine or reservoir suspended above the fire-pot, which may be filled with coal at its upper extremity, and which, when filled, is closed by a cover. The lower end of the reservoir or feeder is left open, and as the coal in the fire-pot is consumed, that in the reservoir falls and supplies the place of that consumed, the combustion being only in the fire-pot, and not in the reservoir. Many such stoves had been made, and they were well known years before either of the complainants' patents was granted, and it is not claimed that, merely as base-burning stoves, they are within the monopoly of the patents. The inventions claimed are alleged improvements in the structure and arrangement of such stoves. They consist in what is described as a new combination of old and known devices, producing a new manufacture namely, a stove uniting in itself all the advantages of a reservoir-stove, and those of a revertible draft-stove, which prevents the products of the combustion in the fire-pot from passing up, around, and over the reservoir, thereby heating the fuel therein, so as to expel its gases, and cause their explosion as well as their escape into the apartments where the stove may be placed. All the devices of which the alleged combination is made are confessedly old. No claim is made for any one of them singly, as an independent invention.

It must be conceded that a new combination, if it produces new and

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[No. 2.

useful results, is patentable, though all the constituents of the combination were well known and in common use before the combination was made. But the results must be a product of the combination, and not a mere aggregate of several results each the complete product of one of the combined elements. Combined results are not necessarily a novel result, nor are they an old result obtained in a new and improved manner. Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect without the production of something novel, is not invention. No one by bringing together several old devices without producing a new and useful result, the joint product of the elements of the combination, and something more than an aggregate of old results, can acquire a right to prevent others from using the same devices, either singly or in other combinations, or, even if a new and useful result is obtained, can prevent others from using some of the devices, omitting others in combination.

If, now, we examine the patents held by the complainants, looking first at the objects sought to be obtained by the combinations for which the patents were granted, they are, as described in the specification, first, to prevent the passage of the products of combustion up, around, and over the top of the coal-supply reservoir, so as to heat a surrounding jacket thereof; and, secondly, to heat a circulating or ascending body of air by means of radiated heat from the fire-pot, and at the same time to heat the base of the stove by means of direct heat circulating through descending flues which lead into the ash-pit, or around it, and to the smoke and draft flue. A third avowed object is to secure economy by retarding the fall of the coal into the fire-pot from the supply-reservoir, and by causing the flame to circulate outside of the contracted discharge of the reservoir, and around the upper edge of the fire-pot, and thence to descend around or under the base of the stove in its passage to the smoke and draft flue. Such are the avowed objects of the combination claimed to have been devised by the patentees, and their effects they assert to be husbanding the radiated heat, and using it for the purpose of warming the upper part of the stove and the room in which it is situated, as well as for heating air for warming rooms above, if desirable, and at the same time so confining the direct fire-heat, and keeping it in contact with the base portion of the stove, as to insure warming it to a comfortable degree. A second effect claimed is relief of the incandescent coal from the weight of the body of superincumbent coal, thus preventing the compression of the burning coal in the fire-pot, and securing for the flame free expansion, thus enabling it to act with greater heating effect upon the lower portion of the stove in its passage to the smoke and draft flue. .

The combination employed to produce these effects consists of the following devices, among others :

1. A flaring fire-pot supported by a base, the diameter of the pot being larger at the top than at the bottom.

2. A magazine or reservoir for supplying coal, located over the fire-pot, and having its lower end contracted.

3. Revertible passages or flues outside of the pot for the conduct of the products of combustion downward to the base of the stove, and thence to a main draft-flue leading thereout.

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